Lawyers are often caught between aspirations and reality. Some become cynical, others keep dreaming of doing something good and meaningful. Some just try to make a living. To serve the pre-existing legal framework or to challenge it?
Apology versus Utopianism. Having read an article by Samuel Moyn on Law Schools and their impact on democracy I immediately had to think of this group name I saw years ago on a student platform called StudiVz (basically a German version or, more aptly, copy of Facebook; it is nowadays an abandoned place).
While the group name was meant as a cynical joke, it may also be read as a description of the feeling of being torn between legal social work or joining a big law firm many law students experience in the early stages of their career. Will I change the world? Will I do something good or merely perform well? Will I challenge existing hierarchies or strengthen them?
These and related questions are obviously not restricted to the realm of law. As Moyn writes in Law Schools Are Bad for Democracy,
a certain amount of hypocrisy and rationalization is the essence of most people’s ethical lives in all times and places, especially when those people are at the top of unjustifiable hierarchies
Yet, law is one of this fields where they are most pressing. One gets to know the mechanics of the pre-existing system and gains insights – ideally, at least – into both its injustices and its possibilities. To quote Moyn again,
[w]hat is lacking in public discussions about law school is attention to what it means for legal elites to serve the democratic conversation about how the people rules itself. Rather than burnishing the credentials of law and its royal judicial stewards, we should insist on the centrality of the people in a democratic legal order. If elite students are forced into a dilemma about how to preserve their sense of justice even as they embrace extraordinary privilege, it is, first and foremost, because society allows law schools to endlessly reproduce elite ascendancy. But the institutions themselves can force some change from within, in part by explaining to the people how the law rules them.
Who goes to law schools? Certain tendencies and continuities are clear. Prime candidates include members of the elite – however one wants to define it, see Veblen’s Theory of the Leisure Class) and those eager to join the club. Duncan Kennedy (to whom Moyn himself refers to emphasize how long his and similar forms of criticism have been swirling around), already noted the embeddedness of lawyers in existing power structures already back in 1970 in How the Law School Fails: A Polemic:
The school is too much a part of the society around it-both as a part of the pipeline by which an elite is selected and as a reflection of the values of that elite—to be susceptible of significant change by „reorganization“
Moyn and Kennedy obviously write about US law schools. Global consumers of US TV shows know the dilemma of having to pay your debts or finding adequate housing after your studies well enough (one only needs to think of „How I met your mother“ and Marshall’s struggle to find a meaningful job, his unwilling acceptance to join Barney’s corporation Goliath bank and his ultimate decision to become a judge as a somewhere in-between-solution (between good and evil, that is).
Sure, elitism, ie „the belief or attitude that individuals who form an elite — a select group of people with a certain ancestry, intrinsic quality, high intellect, wealth, special skills, or experience“ (wikipedia), is arguably even more prevalent in the US, at least in its financial form and as the idea of a concentration of power. We may well remember the debate on the true character of the US political system after Gilens and Page openly found that it was actually an oligarchy.
Yet, the interplay between law and society and a lawyer’s decision or at least oscilliation between serving or challenging the existing (legal and thus also political) order is a global question. Every lawyer needs to think about whether there is or should be a presumption in favour of the status quo. Hans Kelsen’s well-known differentiation between the ought and the being is not restricted to any jurisdiction. In one way or the other, the issues raised by Moyn or Kennedy concern us all. Which path to choose?